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ELRCPartially AllowedNot stated in the extract (ELRC Cause, Nakuru)· [2019] KEELRC 2578 (KLR)

Charles M. Kiget v Majani Mingi Group of Companies Limited [2019] KEELRC 2578 (KLR)

Employment and Labour Relations Court
7 March 2019
MMM. Mbaru
1,393 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court struck out decade-old salary arrears claims as too late, but let the more recent claims proceed to full hearing.

What this practically means

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Executive summary

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The respondent, Majani Mingi Group of Companies Ltd, filed a notice of preliminary objection dated 17 May 2018 contending that the claimant's suit, filed on 19 October 2017, was statute barred under section 4(1) of the Limitation of Actions Act Cap 22 and section 90 of the Employment Act, 2007, and was therefore fatally defective and an abuse of process. The claimant, employed from April 1979, resigned on 21 October 2014 and claimed salary arrears of Ksh. 1,002,407.00 accruing from 1997 to 2007, alleging that he signed a discharge voucher on the understanding that the arrears would be paid after a related union cause (KPAWU v Majani Mingi, Cause No. 76 of 2013) was concluded, from which he did not benefit as a non-unionised employee. The court held that section 90 of the Employment Act, 2007 is mandatory, allowing no discretion to extend time except for continuing injuries, and that claims arising under the repealed Employment Act Cap 226 (which governed the 1997 to June 2007 arrears since the 2007 Act only commenced on 2 June 2008) should have been filed within 6 years, i.e. by June 2013. Amendment of a memorandum of claim cannot revive time-barred claims. Accordingly, the preliminary objection was allowed only in part: claims due by June 2007 and not filed by June 2013 were found time barred, while the claimant was left at liberty to pursue the claims not caught by limitation. Delivered at Nakuru on 7 March 2019 by M. Mbaru, Judge.

Key legal issues

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01

Limitation of salary arrears claims accruing from 1997 to 2007 under the repealed Employment Act Cap 226

Holding

Claims premised under the repealed Employment Act Cap 226 should have been filed within 6 years, i.e. on or before June 2013; those due by June 2007 and not filed by then are time barred.

Reasoning

The Employment Act, 2007 only came into force on 2 June 2008, so the salary arrears claims for 1997 to June 2007 fall under the repealed Employment Act Cap 226, whose limitation period is 6 years under section 4(1) of the Limitation of Actions Act. The claimant filed on 19 October 2017, far outside that window, and the court found no discretion to extend time for contract-based claims.

p. 2
02

Effect of the claimant's resignation on 21 October 2014 and filing on 19 October 2017

Holding

The suit filed on 19 October 2017 was within the 3-year period under section 90 of the Employment Act, 2007, so claims not caught by the earlier time bar survive.

Reasoning

Section 90 requires employment claims to be commenced within 3 years of the act, neglect or default complained of, or within 12 months of cessation of a continuing injury. The claimant resigned on 21 October 2014 and filed the memorandum of claim on 19 October 2017, a few days before the lapse of 3 years, so the respondent's objection that the whole claim was out of time failed in respect of the surviving claims.

p. 2

Legal principles established

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  • Section 90 of the Employment Act, 2007 is mandatory: employment claims must be filed within 3 years of the cause of action, with no judicial discretion to extend time except for continuing injuries (12 months from cessation)
  • Amendment of a memorandum of claim cannot be used to introduce claims that are otherwise time barred

Court orders

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  1. 1.The preliminary objection is allowed to the extent that claims made and due by June, 2007 and not filed by June, 2013 are found time barred
  2. 2.The claimant is at liberty to address the claims not time barred

Authorities

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Legislation

  • Limitation of Actions Actsection 4(1)
  • Employment Act, 2007section 90
  • Employment Act (repealed), Cap 226general

Cases cited (6)

  • G4S Security Services (K) Ltd versus Joseph Kamau & 468 others
    [2018] eKLR
  • Diverson versus Samani
    [1995-1998] 1 EA
  • Attorney General & another versus Andrew Maina Githinji & another
    [2015] eKLR
  • David Manjau Mohoro versus ol Pejeta Ranching Limited
    [2014] eKLR
  • E.Torgbor versus Ladislaus Odongo Ojuok
    [2015] eKLR
  • Maria Machocho -v- Total (K)
    Industrial Cause No. 2 of 2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Limitation of Actions Act (Cap 22)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Charles M. Kiget v Majani Mingi Group of Companies Limited [2019] KEELRC 2578 (KLR)", Case Analysis (2019). Not stated in the extract (ELRC Cause, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2578/eng@2019-03-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.